¶1concurring specially:
¶2The record in this case reflects the trial judge ordered the case be dismissed with prejudice for failure to file for timely substitution of proper parties because of death of plaintiff.
¶3Title 12 O.S.1991 § 2201 provides: “A. Judicial notice shall be taken by the court of the common law, constitutions and public statutes in force in every state, territory, and jurisdictions of the United States.” {Emphasis Supplied} In other words, judges in this state are charged with judicial knowledge of Oklahoma’s statutes.
¶4The last sentence of 12 O.S.1991, § 2025(A)(1) which is set forth more fully in today’s majority opinion provides: “Unless the motion for substitution is made within ninety (90) days of service of the statement of death, the action shall be dismissed without prejudice as to the deceased party.” {Emphasis Supplied}
¶5In my view, when the trial judge dismissed “with prejudice”, his act was extrajudicial and without authority of law. Athough this question of dismissal with prejudice vis-a-vis dismissal without prejudice may not have been raised below, it appears on the face of the petition in error. The “dismissal with prejudice” was not authorized by statute and constituted fundamental error.
¶6I am authorized to state that Chief Justice WILSON and Vice Chief Justice KAUGER join me in the views expressed herein.